Reginald Lee WALKER, Plaintiff-Appellant, v. John MARUFFI, Joseph Polisar, K. Kraemer, Richard Ness, Elroy “Whitey” Hansen, and City of Albuquerque, Defendants-Appellees.
No. 8128
Court of Appeals of New Mexico
March 19, 1987
737 P.2d 544 | 105 N.M. 763
Certiorari Denied May 14, 1987.
DISCUSSION
We first address defendants’ contention that plaintiff failed to preserve this issue for appeal. Under the facts of this case, we do not agree. There is a twofold purpose in stating an objection: to alert the trial court to error and to preserve the issue for review. See El Paso Electric Co. v. Real Estate Mart, Inc., 98 N.M. 570, 651 P.2d 105 (Ct.App.1982). Here, defendant Kesselman raised the issue in his motion to strike cost bill and objections to cost bill. Additionally, the trial court was clearly aware of the issue of whether to assess costs in proportion to the negligence of the parties since it specifically addressed this issue in the memorandum opinion. Consequently, we believe the issue was preserved.
Under
In the case of Eichel v. Goode, Inc., 101 N.M. 246, 680 P.2d 627 (Ct.App.1984), the trial court awarded costs against the defendants, nearly in proportion to their liability. We upheld the trial court‘s award determining that there was no abuse of discretion. Further, we held that a direct relation of percentage of fault to cost was not required; rather, the matter was within the trial court‘s discretion. Id. at 252, 680 P.2d 627. A related argument was advanced in Jaramillo v. Fisher Controls Co., 102 N.M. 614, 698 P.2d 887 (Ct.App.1985), where the defendant complained because the trial court failed to apportion costs based on the percentage of liability. Again, we affirmed the trial court, recognizing wide discretion in the granting of costs. There need be no direct relation between percentage of fault and costs, Robison v. Campbell, 101 N.M. 393, 683 P.2d 510 (Ct.App.1984), but it is within the trial court‘s discretion to award costs in such a manner. Trial courts are under no compulsion to apportion costs on the basis of fault, yet, in exercising their discretion, they may do so if they wish. The trial court determined that costs should be assessed against defendants in proportion to their fault and had wide latitude to so decide. Thus, the trial court is affirmed.
IT IS SO ORDERED.
DONNELLY, C.J., and FRUMAN, J., concur.
John L. Walker, Albuquerque, for plaintiff-appellant.
Barbara J. Merryman, Asst. City Atty., Wayne C. Wolfe, Paul L. Civerolo, David A. Baca, Civerolo, Hansen & Wolfe, P.A., Albuquerque, for defendants-appellees.
MINZNER, Judge.
This tort case has been pending on our docket and ready for submission since February of 1985. In August of 1986, upon the recommendation of and with the assistance of the State Bar of New Mexico, which assistance is greatly appreciated, this court adopted an experimental plan pursuant to which cases would be assigned to advisory committees of experienced attorneys. Pursuant to our order adopting the plan, once the advisory committee rendered an opinion, that opinion would be served on the parties with an order to show cause why the opinion should not be adopted as the opinion of the court. The parties would then have the opportunity to submit response memoranda to the court.
This case was submitted to an advisory committee and the parties were so notified. That committee rendered a unanimous opinion which proposed to decide the case in favor of the plaintiff. The parties were notified of the opinion and of their right to submit response memoranda. Defendants and plaintiff filed timely response memoranda. We scheduled oral argument, and we have considered the record on appeal, the original and supplemental briefs in this case, the opinion of the advisory committee, both responses, and the contentions at oral argument. It is the decision of the court that the opinion of the advisory committee should be adopted, as modified, as follows.
BACKGROUND.
This case raises again the question of the statute of limitations to be applied for civil rights actions filed in the New Mexico state courts. We first state the facts, briefly review other cases in which the question has been discussed, and then state the appellate issues.
On February 20, 1984, plaintiff brought suit against the City of Albuquerque and five Albuquerque police officers in the Bernalillo County District Court, alleging various counts arising under the Civil Rights Act of 1871, codified as
On May 18, 1984, defendants answered and moved to dismiss the complaint on the ground that the action was barred by the two-year statute of limitations provided by the New Mexico Tort Claims Act,
In DeVargas v. State, the supreme court quashed a writ of certiorari, stating:
Under New Mexico law, the most closely analogous state cause of action is provided for by the New Mexico Tort Claims Act under
Section 41-4-12, N.M.S.A.1978 . The statute of limitations applicable to a cause of action underSection 41-4-12 is set forth inSection 41-4-15, N.M.S.A.1978 . UnderSection 41-4-15 , the action must be commenced within two years after the occurrence which results in the injury.
Id. at 564, 642 P.2d at 167. After that decision, an inconsistency existed between state and federal courts as to the relevant statute of limitations.
In Gunther v. Miller, 498 F.Supp. 882 (D.N.M.1980), a federal district court had ruled that the general limitations periods provided by New Mexico law applied to Section 1983 claims. See
Between the time plaintiff filed his complaint and the time defendants answered and moved for dismissal, the Tenth Circuit held, on appeal from a decision of the New Mexico federal district court, that selection of the statute of limitations applicable to Section 1983 claims is a matter of federal law and that the most appropriate limitations period for Section 1983 claims is the three-year period for personal injuries found in
Plaintiff argued to the trial court that DeVargas v. State did not control because the selection of the appropriate statute of limitations for Section 1983 claims is a matter of federal law. Under Garcia v. Wilson, he contended, the three-year statute of limitations for injury to the person or reputation of any person provided by
As we understand plaintiff‘s argument at trial, it had two parts: (1) the supreme court had never addressed the issue of whether federal law controlled the characterization of Section 1983 claims; and (2) if
Plaintiff appealed, making the same argument he had made at trial, as well as a claim that the two-year statute of limitations provided by the Tort Claims Act is not consistent with the broad remedial purpose of Section 1983.
While the present appeal was pending in this court, the United States Supreme Court issued its opinion in Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). On appellant‘s motion, this court granted the parties the right to file supplemental briefs. As a result, the appellate issues before this court became (1) the effect of Wilson v. Garcia, and (2) whether that case controls the timeliness of plaintiff‘s complaint, or rather should be given purely prospective effect.
EFFECT OF WILSON v. GARCIA.
Defendants assert that we are not bound by Wilson v. Garcia because DeVargas v. State was not expressly or impliedly overruled. They contend that in this case the supremacy clause of the United States Constitution does not apply. See
First, Wilson v. Garcia holds that the choice of the applicable state statute of limitations in a Section 1983 case is a matter of federal, not state, law. We are bound by decisions of the United States Supreme Court affecting federal law. Bourguet v. Atchison, Topeka & Santa Fe R.R., 65 N.M. 200, 334 P.2d 1107 (1958).
The Supreme Court of the United States has appellate jurisdiction over federal questions arising either in state or federal proceedings, and by reason of the supremacy clause the decisions of that court on national law have binding effect on all lower courts whether state or federal. United States ex rel. Lawrence v. Woods, 432 F.2d 1072, 1075-76 (7th Cir.1970), cert. denied, 402 U.S. 983, 91 S.Ct. 1658, 29 L.Ed.2d 148 (1971).
The Civil Rights Act of 1871 does not contain a statute of limitations.
The jurisdiction in civil and criminal matters conferred on the district courts * * * for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect....
However, the United States Supreme Court has stated that the federal courts are to apply the state statute of limitations governing the cause of action provided by state law which is most closely analogous to
The Supreme Court, in Wilson v. Garcia, was guided by the principles set forth in Burnett v. Grattan, 468 U.S. 42, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984). In that case, the Court set forth a three-step process in determining, pursuant to Section 1988, the proper rules of decision applicable to civil rights claims:
First, courts are to look to the laws of the United States “so far as such laws are suitable to carry [the civil and criminal civil rights statutes] into effect.” If no suitable federal rule exists, courts
Because no “suitable” federal statute of limitations exists for Section 1983 claims, the Court determined, in Wilson v. Garcia, that the case “principally involve[d] the second step in the process: the selection of ‘the most appropriate,’ or ‘the most analogous’ state statute of limitations to apply.” 471 U.S. at 268, 105 S.Ct. at 1943. Writing for the Court, Justice Stevens concluded that the selection of the appropriate state statute of limitations was a question of federal rather than state law. He explained:
Our identification of the correct source of law properly begins with the text of
§ 1988 . Congress’ first instruction in the statute is that the law to be applied in adjudicating civil rights claims shall be in “conformity with the laws of the United States, so far as such laws are suitable.” This mandate implies that resort to state law—the second step in the process—should not be undertaken before principles of federal law are exhausted. The characterization of§ 1983 for statute of limitations purposes is derived from the elements of the cause of action, and Congress’ purpose in providing it. These, of course, are matters of federal law. Since federal law is available to decide the question, the language of§ 1988 directs that the matter of characterization should be treated as a federal question. Only the length of the limitations period, and closely related questions of tolling and application, are to be governed by state law.This interpretation is also supported by Congress’ third instruction in
§ 1988 : state law shall only apply “so far as the same is not inconsistent with” federal law. This requirement emphasizes “the predominance of the federal interest” in the borrowing process, taken as a whole. [Footnotes and citation omitted.]
471 U.S. at 168-269, 105 S.Ct. at 1943. (Emphasis added.)
The Court went on to explain why a single characterization rule was necessary. The Court said:
When
§ 1983 was enacted, it is unlikely that Congress actually foresaw the wide diversity of claims that the new remedy would ultimately embrace. The simplicity of the admonition in§ 1988 is consistent with the assumption that Congress intended the identification of the appropriate statute of limitations to be an uncomplicated task for judges, lawyers, and litigants, rather than a source of uncertainty, and unproductive and ever increasing litigation. Moreover, the legislative purpose to create an effective remedy for the enforcement of federal civil rights is obstructed by uncertainty in the applicable statute of limitations, for scarce resources must be dissipated by useless litigation on collateral matters.Although the need for national uniformity “has not been held to warrant the displacement of state statutes of limitations for civil rights actions,” Board of Regents v. Tomanio, 446 U.S., at 489 [100 S.Ct., at 1797], uniformity within each State is entirely consistent with the borrowing principle contained in
§ 1988 . We conclude that the statute is fairly construed as a directive to select, in each State, the one most appropriate statute of limitations for all§ 1983 claims. The federal interests in uniformity, certainty, and the minimization of unnecessary litigation all support the conclusion that Congress favored this simple approach. [Footnotes omitted.]
471 U.S. at 275, 105 S.Ct. at 1946-47.
For these reasons, Wilson v. Garcia characterizes “all
For New Mexico, the Court identified
The fact that the United States Supreme Court did not expressly overrule DeVargas v. State is irrelevant. Every state court that has examined Wilson v. Garcia has concluded, as we do, that Wilson v. Garcia is controlling in the state courts. Henderson v. State, 110 Idaho 308, 311, 715 P.2d 978, 981 (1986), cert. denied, 477 U.S. 907, 106 S.Ct. 3282, 91 L.Ed.2d 571 (1986) (“In view of the holding in Wilson,
Defendants misconstrue Wilson v. Garcia as dealing only with a question of state law. The state law questions are the “length of the [statute of] limitations period [for personal injury actions], and closely related questions of tolling and application.” 471 U.S. at 269, 105 S.Ct. at 1943. Thus, while a state legislature may choose to shorten or lengthen the limitations period for personal injury claims, and thereby shorten or lengthen the limitations period applicable to Section 1983 claims, it must do so uniformly so as not to discriminate against civil rights claims. New Mexico must follow the United States Supreme Court‘s characterization rule, and under that rule, at the present time, the statute of limitations for personal injuries is applicable to all Section 1983 claims as a matter of federal law.
Second, we believe we are not constrained by the New Mexico Supreme Court decision in DeVargas v. State. We note that the New Mexico Supreme Court quashed its writ of certiorari in a ruling called a “decision.” “Decisions” ordinarily are not to be published. See
Furthermore, neither this court nor the New Mexico Supreme Court was presented with the issue of which statute of limitations is applicable as a matter of federal law. In Alexander v. Delgado, this court was criticized for abolishing a defense to a negligence action which had been presented to the New Mexico Supreme Court and rejected. Therefore, we were precluded from erasing the previously-established precedent. State v. Manzanares is likewise inapposite. Although there we attempted to overrule an established prece
DeVargas v. State presented the question of which state statute of limitations applied as a matter of state law; the parties assumed that the second step in the process of determining the relevant rule was a matter of state law. Neither in that case nor in any other opinion has the New Mexico Supreme Court addressed the question of whether federal or state law controlled the characterization of a Section 1983 claim for statute of limitations purposes. Because Wilson v. Garcia resolves a question never presented to the supreme court, the supreme court decision in DeVargas v. State is not the controlling precedent.
In an appropriate case, this court may consider whether the New Mexico Supreme Court precedent is applicable. See State v. Scott, 90 N.M. 256, 561 P.2d 1349 (Ct.App.1977), overruled on other grounds sub nom. State v. Reynolds, 98 N.M. 527, 650 P.2d 811 (1982). On these facts, for these reasons, we conclude that Wilson v. Garcia controls.
PROSPECTIVE APPLICATION.
We next turn to defendants’ assertion that Wilson v. Garcia should not be applied to the facts of this case but rather should be applied prospectively. To determine whether a new case should be given only prospective effect, the following factors articulated in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971) are generally applicable:
First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, [citation omitted], or by deciding an issue of first impression whose resolution was not clearly foreshadowed, [citation omitted]. Second, it has been stressed that “we must * * * weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.” [Citations omitted.]
Whenry v. Whenry, 98 N.M. 737, 739, 652 P.2d 1188, 1190 (1982) (quoting Chevron Oil Co. v. Huson). In applying this analysis, we conclude that neither the first factor nor the second prohibits retrospective application. The critical factor is the third: whether a substantially inequitable result will occur if the rule is applied retrospectively. We think it will not.
Although Wilson v. Garcia established a uniform statute of limitations for Section 1983 claims in New Mexico, and this result was not foreshadowed by prior Supreme Court precedent, see Smith v. City of Pittsburgh, 764 F.2d 188 (3rd Cir.), cert. denied, 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985), these facts are not determinative as to the first factor. Id. Given the inconsistency between federal and state courts, defendant could not justifiably have relied on a two-year limitations period to have barred liability.
If defendants were to have relied on any statute of limitations to set this case in repose, given the state of the law, it would more probably have been the four-year period rather than the two-year period. See generally DeVargas v. Montoya, 796 F.2d 1245 (10th Cir.1986) (discussing federal district court precedent in New Mexico prior to Wilson v. Garcia). See also Davis, What New Mexico Statute of Limitations Applies in Federal Civil Rights Actions?, XII The New Mexico Trial Lawyer 37, 47 (April 1984) (indicating that the federal district court had filed its opinion in Garcia v. Wilson applying the four-year statute of limitations on July 29, 1982, and had followed its decision consistently).
Defendants also contend that we should not apply Wilson v. Garcia because it serves to revive a claim that was barred when plaintiff filed his complaint. We do not think the principle is applicable. See Dolezal v. Blevins, 105 N.M. 562, 734 P.2d 802 (App.1987). The claim was not barred under the rule followed in federal court.
In short, we are not persuaded that pure prospectivity is appropriate. Cf. Hicks v. State, 88 N.M. 588, 544 P.2d 1153 (1975) (decision abolishing sovereign immunity applied purely prospectively). Plaintiff pursued his claim in state court, raising the very issue that was resolved in his favor by the United States Supreme Court. Because his case was pending on appeal when Wilson v. Garcia was decided on April 17, 1985, and the issue of the applicable statute of limitations was properly preserved, defendant is entitled to the benefit of the Supreme Court decision. Cf. Whenry v. Whenry.
Accordingly, we hold that the statute of limitations to be applied in this case is the three-year period of
IT IS SO ORDERED.
This court acknowledges the aid of Attorneys Raymond W. Schowers, James Branch, and J.J. Monroe in the preparation of this opinion. These attorneys constituted an advisory committee selected by the Chief Judge of this court, and this court expresses its gratitude to these attorneys for volunteering for this experimental plan and for the quality of work submitted.
ALARID, J., concurs.
DONNELLY, C.J., concurs in part and dissents in part.
DONNELLY, Chief Judge (concurring in part and dissenting in part).
I respectfully dissent from the majority decision which construes the ruling in Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) to have retroactive application in the present case.
I concur with that portion of the majority opinion that determines that under the United States Supreme Court decision in Wilson, the applicable New Mexico statute of limitations governing actions grounded upon alleged violations of civil rights under
In DeVargas v. State, 97 N.M. 563, 642 P.2d 166 (1982), the New Mexico Supreme Court held that the two-year statute of limitations under the State Tort Claims Act was the controlling statute of limitations. Wilson overturned the rationale for DeVargas stating that the federal courts would determine the appropriate state statute of limitations applicable to actions for abridgment of civil rights and held that,
The complaint in the instant case was filed on February 20, 1984, pleading that the alleged wrongful acts of the defendants occurred in 1981. Thus, at the time plaintiff‘s complaint was filed in this case, DeVargas was the controlling law because Wilson was decided on April 17, 1985.
In Jackson v. City of Bloomfield, 731 F.2d 652 (10th Cir.1984), the Tenth Circuit Court of Appeals considered an issue similar to that presented herein, and held that under the facts therein, Garcia v. Wilson was to be applied prospectively. I would follow that precedent in this case. In the present case, the trial court relied upon DeVargas in ruling upon the motion to dismiss. Because DeVargas was the controlling authority at the time plaintiff filed the action herein, Wilson should not be accorded retroactive application, thus, retroactively modifying DeVargas so as to apply to the facts of the case before us. Cf. State v. Manzanares, 100 N.M. 621, 674 P.2d 511 (1984).
I would not apply the ruling in Wilson retroactively.